We used to know immediately if an appellate opinion constituted a legal precedent – if it appeared in a printed book, and hadn't been reversed or overruled, it was the law (to one degree or another). Then came electronic databases, and suddenly things weren't so clear any more. Many courts adopted rules prohibiting citation of "unpublished" opinions, but what does that mean in the digital age? And debates arose as to whether it was fair – and even constitutional – to prevent advocates from citing relevant cases when representing their clients in court.
Prohibitions on citation began to wane about a decade ago. Texas abolished the "do not publish" designation effective January 1, 2003, along with all prohibitions on citing unpublished opinions. The federal courts acted a little later and a little less sweepingly, eliminating the prohibition nationwide, effective January 1, 2007, for opinions issued on and after that date. The Fifth Circuit went further and, like Texas, allows citation of all unpublished opinions (but requires that copies be attached if the opinions are not in an electronic database).
Because citation is now fair game, many lawyers believe that all opinions, published and unpublished, have precedential value. They are wrong. In Texas, pre-2003 "do not publish" opinions have no precedential value. And in the Fifth Circuit, just to confuse everyone, pre-1996 unpublished opinions do have precedential value but unpublished opinions from 1996 forward do not. So, before citing an unpublished opinion, or when your opponent cites one, check the date!
What does it mean if an opinion is non-precedential? Simply speaking, it means that the opinion does not express the law merely by reason of its existence. What it says may be the law, just as what your brief says may be the law, but if that is so, it is because of its persuasive value and not just because someone said it. Think of the unpublished opinion as a law review article by three lawyers who happen to wear black robes. Cite it if it's helpful, and argue that the court should follow it, but don't tell the court it is bound to follow it, because it isn't.
What about citing in Court A an unpublished opinion from Court B? Although there are a few mistaken opinions applying the forum court's citation rules to opinions issued elsewhere, the majority of courts hold that the citability and precedential value of an opinion are determined by the court that issued it. So be prepared to check the appellate or local rules of the other jurisdiction before citing or responding to the citation of an unpublished opinion. (An aside – just to liven things up a bit, in California, the Supreme Court can "de-publish" a Court of Appeals opinion, making it uncitable, even if it's already been printed in the California Reporter.)
Finally, what about the Supreme Court of the United States? Easy. All opinions are published, and all opinions are citable. And yes, Virginia, despite what some political candidates might tell you, they are the law.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
